ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000062

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 15/01/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Claimant was employed as a Harnesser at the Respondent’s Activity Park on a part time/casual basis. She commenced her employment on 17^th March 2012.

At the hearing the Claimant contended that she was rostered for duty on the weekend of 1^st May 2015 but she was advised not to come in to work due to inclement weather. (This is standard practice as there is less demand for Harnessers during inclement weather).

On 4^th May 2015 the Claimant did not attend for work as she was not rostered. She indicated that she had been suffering from a bad back during the previous two weeks and had being receiving attention for that. She had been off work from 18^th April 2015 due to back pain.

The Claimant was not subsequently rostered for duty following g the weekend of 1^st May 2015, and on 15^th May 2015 she was notified by the Respondent, in a Facebook message, that she would be issued with her P45.

The Claimant has alleged this amounts to unfair dismissal as the Respondent failed to follow any procedures in relation to her dismissal.

Respondent’s Submission and Presentation:

The Respondent advised that the Claimant was initially rostered for work over the weekend of the 1^st May 2015. However due to inclement weather she was not required to attend. The Claimant had not been rostered for work the two weeks prior to 1^st May 2015 as she had been out of work due to back pain.

Following the weekend of 1^st May 2015 the Respondent contended it attempted to contact the Claimant to roster her for work again but that she failed to return the attempts by the Respondent to contact her. The Respondent therefore concluded that the Claimant had left her employment and accordingly issued her with her P45 on 15^th May 2015.

In coming to this conclusion the Respondent relied on a verbal statement it contended the Claimant made to her manager where the Respondent alleged the Claimant advised the manager that she was handing in her notice as she intended to set up her own fashion business. In his evidence at the hearing her manager advised that the Claimant told him she had obtained a business loan to set up her fashion business. During this conversation her manager shook her hand and he wished her all the best for her future.  

Having tried to contact the Claimant subsequently to roster her for work, and having failed to get a response, the Respondent was satisfied that the Claimant had in fact handed her notice to her manager and therefore issued her with her P45 on 15^th May 2015.

At the hearing the Respondent also presented the Claimant’s disciplinary record. The Respondent outlined that three strikes on the disciplinary record would lead to a dismissal.   The disciplinary record indicated that the Claimant has been noted for two strikes, one on 27^th April 2015 as she “didn’t e-mail in any unavailable dates”; and a second strike on 5^th May 2015 for “no show for shift, didn’t answer telephone calls”. On 13^th May2013 a further entry on the Claimants disciplinary record noted “never replied to any e-mail or phone calls, no reference to be given”.  

The Respondent further advised that its normal way of communication with employees was through Facebook Messaging, which is a personal messaging service. It generally contacted staff in this manner. The Respondent also provided evidence which demonstrated this was the manner it had communicated with the Claimant before. The Respondent acknowledged that on 15^th May 2015 it advised the Claimant by Facebook Messaging that it was issuing her with a P45.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

The issue for decision is whether the Respondent Unfairly dismissed the Claimant on 15^th May 2015 by issuing her with her P45 on that date.

Whilst at the hearing the Respondent contended that the Claimant gave her manager notice by advising she was terminating her employment to set up her own business, the Claimant denied this. In her evidence the Claimant stated that she did not set up a business, and following her dismissal she started a full time course in fashion.

The Respondent had noted a number of strikes on the Claimant’s disciplinary record regarding her absence, and failures to return calls or e-mails from the Respondent regarding availability to be rostered for work. The Respondent contended this was a contributing factor to its decision to dismiss.

Legislation involved and requirements of legislation:

Section 6(1) of the 1977 Act states the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.

Findings:

The matter that the Claimant’s employment was terminated is not in dispute.

Based on the evidence provided the Claimant was employed on a part time casual basis where she would be called in advance to be rostered for work. At times these rosters would be changed at short notice, e.g. on the weekend of 1^st May 2015 where her roster was cancelled due to inclement weather. Her contract of employment stated she would be notified of her working hours a week in advance and also stated a requirement for flexibility.

In addition the Claimant had a recent history of non-availability due to a back problem and in particular she was not available for work for the two weeks prior to 1^st May 2015. This absence was accepted and tolerated by the Respondent.

The Respondent was somewhat conflicting in its reasons for terminating the contract. On the one hand the Respondent referred to its belief that the Claimant had given her notice verbally to the her manager, an issue which is disputed. On the other hand the Respondent also inferred the reason for issuing the P45, as recorded on the Claimant’s disciplinary record, was that she failed to e-mail her unavailability, for not turning up for shift, and for failure to return calls or e-mails.

The Claimants contract of employment states that termination may be made by the Company if, in the reasonable opinion of the company, the reason results wholly or mainly from one of the following:

a)      The capability, competence or qualifications of the employee for the work he (sic) was employed to do

b)      The conduct of the employee

c)       The redundancy of the employee

d)      The employee being unable to work or continue to work in a position which would contravene another statutory requirement.

The contract also requires the employer to provide the employee with one week’s notice (or payment in lieu, by agreement). Additionally if an employee is terminating their contract they are required to give one weeks notice in writing.

As the Claimant did not give notice in writing, and has denied ever telling her manager that she was giving her notice, I find that the Respondent has failed to demonstrate that the Claimant handed in her notice. I therefore find that the Respondent dismissed the Claimant, and did so without notice by advising the Claimant on 15^th May 2015 that it was issuing her with a P45.

The decision of the Respondent to dismiss the employee was also made without the employee being aware that a number of “strikes” had been placed on her disciplinary record, and without the employee ever being warned that her lack of attendance or failure to return calls contributed to such strikes being recorded and would lead to her dismissal.

The decision of the Respondent to issue the P45 clearly amounts to a decision to dismiss the employee where it was noted in her disciplinary record no reference to be given. The decision to dismiss was made without following any reasonable process, without any warning been given to the Claimant, and also at a time following the Claimant’s period of sick leave due to a back injury.

Accordingly, the Tribunal finds that the claimant was unfairly dismissed and the claim under the Unfair Dismissals Acts 1977-2007 succeeds. The Tribunal awards the claimant compensation in the amount of €2,400.

Dated:   26^th April 2016